Affirming a state trial judge's conclusion rendered almost a year ago, the Arkansas Supreme Court today declared the Arkansas law banning adoption by unmarried couples unconstitutional under the state constitution in a 25 page opinion, Arkansas Department of Human Services v. Cole.

The law, Act One, was passed by the voters in November 2008 and prohibited cohabiting same-sex couples and (unmarried) heterosexual couples from becoming foster or adoptive parents.

The Arkansas Supreme Court held that there is a fundamental, if implicit, right of privacy in the state constitution: "under the Arkansas Constitution, sexual cohabitors have the right to engage in private, consensual, noncommercial intimacy in the privacy of their homes." This right was infringed by Act One which "precludes all sexual cohabitors, without exception, from eligibility for parenthood, whether by means of adoption or foster care." The court found it objectionable that under Act One state "agencies must 'police' couples seeking adoption or foster care to determine whether they are sexually involved in the event those couples represent that they are celibate."

Based on the existence of the fundamental right, the court applied a "heightened scrutiny" standard which it defined as requiring a compelling interest and least restrictive method to carry out that interest.

The court articulated the interests and concerns raised by the state and the intervenor, Family Council Action Committee, that has sponsored the ballot initiative. These concerns included arguments that unmarried cohabiting relationships are less stable, put children at higher risk for domestic violence and abuse, and have lower income rates, higher infidelty rates, and less "social support." The court did not engage in any discussion about whether or not such propositions were true, but instead concluded that such concerns could be "addressed by the individualized screening process currently in place in foster and adoption cases."

Thus, the individualized assessments were the least restrictive means and the categorical ban failed to pass "constitutional muster."